Skip to main content

Full text of "Annual Report Workers' Compensation Appeals Tribunal 1999"

See other formats


1999 



Workplace Safety and Insurance Appeals Tribunal 

Tribunal d'appel de la securite professionnelle et 
de I' assurance contre les accidents du travail 



Annual 
Report 




\ WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL 



AnnRep 

Ont. 

WSIAT 

1999 

c.2 

OWTL 




Ontario 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/annualreport1999onta_0 




Annual 
Report 




WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL 



Workplace Safety and Insurance Appeals Tribunal 

505 University Avenue, 2nd Floor 

Toronto, Ontario M5G 2P2 

ISSN: 1480-5707 

©2000 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



TABLE OF CONTENTS 



INTRODUCTION v 

CHAIR'S REPORT 

APPROACHING THE MILLENIUM 1 

HIGHLIGHTS OF THE 1999 CASE ISSUES 3 

Transitional Provisions in the WSIA 3 

Board Policy Under the WSIA 4 

Right to Sue Applications 6 

Benefits Under the Pre-1997 Act 7 

Occupational Disease 8 

Employer Issues 9 

Miscellaneous 10 

APPLICATIONS FOR JUDICIAL REVIEW 1 1 

OMBUDSMAN COMPLAINTS AND OTHER ACTIVITIES 1 1 

TRIBUNAL REPORT 

VICE-CHAIRS, MEMBERS AND STAFF 13 

OFFICE OF COUNSEL TO THE CHAIR 13 

OFFICE OF THE VICE-CHAIR REGISTRAR 13 

The Vice-Chair Registrar 14 

The Intake Department 14 

Pre-hearing Screening 15 

Registrar Information Centre (RIC) 15 

TRIBUNAL COUNSEL OFFICE 15 

Pre-hearing Legal Workers 15 

Post-hearing Legal Workers 15 

Lawyers 16 

Medical Liaison Office 16 

INFORMATION DEPARTMENT 19 

Library Services 19 

Publications 21 

STATISTICAL SUMMARY 22 

Overview 22 

Cases Received 23 

Case Dispositions 23 

Remaining Inventory 24 

Comparative Statistics for 1999 Hearings and Decision Productivity 26 

Party Representation 26 

FINANCIAL MATTERS 27 



- in - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



APPENDIX A 

VICE-CHAIRS AND MEMBERS IN 1999 39 

VICE-CHAIRS AND MEMBERS - REAPPOINTMENTS IN 1999 41 

NEW APPOINTMENTS DURING 1999 41 

SENIOR STAFF 42 

MEDICAL COUNSELLORS 42 

APPENDIX B 

AUDITORS' REPORT AND FINANCIAL STATEMENTS 43 



- IV - 




Introduction 



The Workplace Safety and Insurance Appeals Tribunal ("WSIAT" or "Tribunal") 
considers appeals from final decisions of the Workplace Safety and Insurance Board 
("WSIB" or "the Board") under the Workplace Safety and Insurance Act, 1997 
("WSIA"). The WSIA, replacing the Workers' Compensation Act, came into force 
January 1, 1998. The Tribunal is a separate and independent adjudicative institution. 
It was formerly known as the Workers' Compensation Appeals Tribunal, until the 
name was changed pursuant to section 173 of the WSIA. 

This volume contains the Tribunal's Annual Report to the Minister of Labour and 
to the Tribunal's various constituencies, together with a Report of the Tribunal Chair. 
It is primarily a report on the Tribunal's operations for fiscal year 1999 and 
comments on some matters which may be of special interest or concern to the 
Minister or the Tribunal's constituencies. 

The Tribunal Report focuses on Tribunal activities, financial affairs and the 
evolving administrative policies and practices. 



_ v - 




Chair's 
Report 



APPROACHING THE MILLENIUM 



Following the 1998 "avalanche" of appeals, 1999 saw the Tribunal continue its 
period of transition as it adapted to its new role as a high- volume final appeal agency 
within the Workplace Safety and Insurance system. A principal challenge for the 
Tribunal in 1999 was maintenance of a quality adjudicative service while 
substantially increasing the number of appeal dispositions. In addition, the Tribunal 
continued to work with the Workplace Safety and Insurance Board in an attempt to 
streamline administrative practices and ensure quality service throughout the 
adjudicative system. 

In order to cope with the dramatically expanded caseload and to meet its 
commitments to the Ombudsman, injured worker and employer communities, 
Minister of Labour and the Government, the Tribunal made a number of significant 
changes in 1999. It increased its roster of Vice-Chairs (full-time and part-time) from 
30 to 52 by year-end. Once all of the Vice-Chairs have completed their training and 
become productive, they will have a significant impact on the Tribunal's hearing 
capability, particularly in the latter part of the year 2000. As part of its ongoing 
restructuring, the Tribunal created the position of Vice-Chair Registrar (VCR) and 
developed three VCR teams. These VCR teams review new appeals, ensure 
"hearing-ready" status, and stream the appeals into the hearing process through one 
of the Complex Case/TCO Stream, Alternative Dispute Resolution (ADR) Stream, 
the Regular Hearing Stream or the Written Stream. The Tribunal also experimented 
with a new "co-mediation" process involving one worker member and one employer 
member. Parties participate in the co-mediation process on a voluntary basis and, if 
the parties' and co-mediators' efforts produce a recommendation, that 
recommendation goes to a Vice-Chair for implementation through a short decision. 
In addition to increasing its Vice-Chair resources and restructuring its appeal process, 
the Tribunal made changes to its senior management, including the positions of 
Executive Director, Director of Finance, Director of Case Management, Chief 
Administrative Officer, Chief Information Officer and General Counsel. 



- 1 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



To address the problem of lost hearing dates and adjournments caused by 
unprepared representatives, the Tribunal introduced a Code of Conduct for 
Representatives, together with a Practice Direction setting out the process for dealing 
with complaints regarding representatives appearing at the Tribunal. The Code of 
Conduct was a timely innovation and drew the attention of both the Law Society of 
Upper Canada Study on Paralegals and the Attorney General's Review of Paralegals 
in Ontario headed by Mr. Justice Cory. 

The Tribunal continued to expand its use of information technology. All Tribunal 
decisions are now available on Quicklaw. The Tribunal's website (www.wsiat.on.ca) 
now contains information on filing appeals, copies of practice directions, appeal 
applications and information on Tribunal processes. To deal with the heavy caseload, 
the Tribunal also began the design and implementation of a new case management 
system to help streamline the appeal process. Part of the Tribunal business plan 
involves an increased use of information technology to improve the appeal process 
and, ultimately, to access the WSIB system. In an age of E-Commerce, the Tribunal 
is moving in the direction of E- Adjudication as a cost-effective tool in reducing 
processing timelines and dealing efficiently with large volumes of appeals. The 
ultimate goal is to transform the Tribunal from a paper-driven appeals body totally 
dependent upon WSIB paper files, into an IT-based, re-engineered agency offering a 
flexible process which will generate faster appeal dispositions. 

In 1999, the Tribunal also continued to develop service sharing arrangements 
with the Ontario Labour Relations Board (OLRB) and the Pay Equity Hearings 
Tribunal (PEHT) following the co-location of the three agencies at 505 University 
Avenue in Toronto. As part of these service sharing arrangements, the Tribunal 
continues to refine such issues as space arrangements, resource centre facilities, 
communications, reproduction and record retention processes. 

The Tribunal's current business and production plan is designed to eliminate the 
Tribunal's appeal backlog by March 31, 2002, without making sacrifices in the 
quality of the adjudicative service provided. Achieving this objective will not be 
easy; however, based upon the Tribunal performance over the past two years, there is 
cause for optimism. In 1995 and 1996, the Tribunal disposed of 2,142 and 2,512 
appeals respectively. That figure increased to 3073 in 1997. As some of the changes 
at the Appeals Tribunal began to take effect in 1999, the number of appeal 
dispositions increased to 6,205 - an increase of more than 100% over 1997. The 
100+% increase in productivity was accompanied by a continued focus on quality 
adjudication. A roster of knowledgeable Vice-Chairs continued to strive for a higher 
volume of clear, concise and cogent decisions. 

Some indication of the adjudicators' success in this area is evidenced by the 
Appeals Tribunal's continuing unblemished record in 34 judicial reviews by the end 
of 1999. While the increased productivity and unblemished JR record is a tribute to 
the Tribunal adjudicators and employees, it does not tell the whole story; for while 



- 2 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



the number of incoming cases has increased dramatically over the past three years, 
the appeal "mix" has also changed markedly. The Tribunal now receives a much 
higher percentage of "complex" appeals, partially as a result of changes in legislation 
and partially as a result of Tribunal caselaw which has reduced the numbers of the 
more basic types of appeals. Not only has the Tribunal increased its productivity by 
over 100% over the past two years, it has done so while dealing with this 
increasingly complex appeal mix. 

As the Tribunal moves towards the millennium, it will continue to refine its 
adjudicative processes and administrative practices. Increased reliance upon 
information technology, adjudicative techniques such as "whole person" adjudication 
and WSIB "certification" of hearing-ready appeals, will help streamline the Tribunal 
process. Ongoing refinements to management structure, the case management system 
and appeal streams, should also improve the quality of service provided to the 
injured worker and employer communities. Assuming that the Tribunal continues to 
develop constructive changes to its process and technology, the year 2000 should 
provide an indication of whether the new millennium will herald the emergence of a 
refined and improved appeal system for the Province of Ontario. 



HIGHLIGHTS OF THE 1999 CASE ISSUES 



This section highlights some of the legal, factual and medical issues considered 
by the Tribunal during 1999. 

The Workplace Safety and Insurance Act, 1997 came into force on January 1, 
1998. It creates a scheme of workplace insurance for accidents occurring after 
December 31, 1997, and continues the pre- 1997, pre- 1989 and pre- 1985 Workers' 
Compensation Acts, as amended, for earlier injuries. During 1999, the Tribunal 
adjudicated cases pursuant to the provisions of all four Acts. For convenience, cases 
dealing with the WSIA are reviewed first. 

Transitional Provisions in the WSIA 

The substantive provisions in the WSIA have not yet been adjudicated by the 
Tribunal; however, the effect of the WSIA transitional provisions and amendments to 
the earlier Acts have now been considered in a number of cases. 

Prior to January 1, 1998, all appeals were heard by tripartite panels. The WSIA 
provides that appeals heard after 1998 are generally to be heard by a Vice-Chair 
sitting alone, even if the appeal is governed by an earlier Act. The Tribunal has held 
that a tripartite panel is required where a hearing began before January 1, 1998, even 
though the matter had to be reconvened, perhaps before a new panel, after January 1, 



-3- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



1998. See, for example, Decision No. 1434/97 (1999), 49 W.S.I.A.T.R. 20, dealing 
with a pre-hearing conference call, and Decision No. 1146/99 (1999), 51 
W.S.I.A.T.R. 202, and Decision No. 313/9812 (1999), 50 W.S.I.A.T.R. 48, where a 
party withdrew to return to the Board on a related issue. Decision No. 413/96R 
(1999), 52 W.S.I.A.T.R. 1, granted a reconsideration where a hearing was begun in 
1997 and then mistakenly scheduled before a single Vice-Chair in 1998. 

The WSIA introduced a time limit of six months or "such longer period as the 
Tribunal may permit" for appealing Board decisions, including decisions governed 
by the earlier Acts. Tribunal cases have held that a degree of leniency is appropriate 
during the transitional period following creation of the new time limit. For example, 
extensions have been granted where parties were confused by a Board form letter 
which suggested that notice of appeal should be sent to the Board, rather than the 
Tribunal. See Decision No. 972/99E (1999), 51 W.S.I.A.T.R. 158. An extension has 
also be granted when an appeal was filed only a short time after the deadline, the 
other party did not object and the appeal was not frivolous. See Decision No. 
20 19/99E (1999), 52 W.S.I.A.T.R. 277. However, an extension was not granted 
where an appeal was filed over six months after expiry of the time limit, the issue 
was not reasonably related to other issues appealed within time, the worker was 
familiar with the system and did not provide any reasons for the delay, and the case 
appeared weak on the merits. See Decision No. 248/991 (1999), 49 W.S.I.A.T.R. 231. 

A similar six-month statutory time limit also applies to internal Board appeals. 
Decision No. 2007/991 (1999), 52 W.S.I.A.T.R. 268, rejected the argument that, since 
the time limit on a Board decision had expired, the Board decision was now final and 
the Tribunal had jurisdiction to hear the appeal. The Board's decision could not be 
treated as final when the worker had not asked the Board for an extension and there 
was still a possibility of an internal appeal. 

Section 123 of the WSIA sets out the Tribunal's jurisdiction for the purposes of 
the WSIA and the earlier Acts. Section 123(2) specifies certain sections in the WSIA 
over which the Tribunal does not have jurisdiction. It has been held that the Tribunal 
retains jurisdiction to hear appeals involving the effects of settlement of a court 
action on a worker's entitlement to benefits under the earlier Acts, even though it 
does not have this jurisdiction for appeals under the WSIA. See Decision 
No. 1788/98, (1999), 49 W.S.I.A.T.R. 163, and 476/99 (1999), 49 W.S.I.A.T.R. 262. 

Board Policy Under the WSIA 

While the Tribunal previously considered Board policy in deciding appeals, the 
WSIA section 126(1) now expressly states that, if there is applicable Board policy, the 
Appeals Tribunal shall apply it when making a decision. This requirement also applies 
to the earlier Acts. 



-4- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



Section 126 of the WSIA sets out a process for the Board to identify applicable 
policy and for the Tribunal to refer policy to the Board if the Tribunal concludes the 
policy is inapplicable, unauthorized or inconsistent with the Act. The referral is to be 
in writing and state the reasons for the Tribunal's conclusions. The Board then has 
60 days to provide the parties with an opportunity to make submissions and issue a 
written direction with reasons. 

The Tribunal, like other adjudicative tribunals dealing with policy, cannot apply 
policy blindly but must consider whether exceptional circumstances warrant a 
variation. In cases where there is no dispute about the authority for Board policy, the 
Tribunal has interpreted the WSIA as indicating that more weight should be given to 
policy. See, for example, Decision No. 869/99 (1999), 51 W.S.I.A.T.R. 134 (Board's 
policy on going to and from work), Decision No. 1424/99 (1999), 51 W.S.I.A.T.R. 
257 (retroactive adjustment of a voluntary experience rating (VER) account) and 
Decision No. 568/99 (1999), 50 W.S.I.A.T.R. 235 (cancellation of a late filing 
penalty). Where the Board has changed its policy over time, but the policy in effect 
at the time was reasonable and adequately communicated, and its application is 
consistent with the merits and justice of the case, the policy will be applied. See 
Decision No. 210/96 (December 13, 1999). 

Under the WSIA, the Tribunal may be called on to decide whether a policy is 
applicable, authorized or consistent with the Act. The last Annual Report noted that 
there had been a number of appeals on Board policy for pre- 1998 chronic stress 
appeals. Appeals continued to raise this issue in 1999, and the Board provided new 
statements of policy. Decision No. 1233/991 (1999), 52 W.S.I.A.T.R. 229, considered 
the appeal of a secretary with the foreign service who developed a stress disability 
after being posted to Nigeria (where she was exposed to political unrest and also 
physically assaulted) and then to Thailand (where she had inappropriate 
accommodation beside a roof-top bar which was open until 2 a.m.). Subsequent to 
the Tribunal hearing, the Board adopted a resolution that the Board's policy prior to 
1998 was only to compensate for stress due to sudden, shocking and/or life- 
threatening events. Decision No. 1233/991 noted that this statement did not appear to 
consider the "disablement" definition of accident and adjourned for submissions 
from the Board, Tribunal Counsel Office and the parties. Subsequently, Decision No. 
809/9812 (1999), 52 W.S.I.A.T.R. 64, made a section 126(4) referral to the Board on 
its pre- 1998 chronic stress policy. It found that a female correctional officer at a 
federal penitentiary for male prisoners, who worked in a very stressful environment 
which was compounded by the actions of her male co-workers, would be entitled to 
compensation for chronic stress but for the Board's policy. Decision No. 809/9812 
noted that there was no document before 1998 stating the Board's policy on chronic 
stress, although the Board had studied the issue and a few Board decisions had 
granted entitlement. It found that the Board's statement of its policy was not 
consistent with or authorized by the Act since the pre- 1997 Act did not distinguish 
between chronic stress and other disablements. Shortly after the close of this 
reporting period, the Board responded to this referral, stating that prior to 1998 it did 



-5- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



not have a formal Board policy on chronic stress that was intended to apply to the 
Tribunal. 

The Board's policy on second NEL assessments was questioned in Decision 
No. 229/981 (April 9, 1998). The policy provides that an initial assessment should not 
be considered if a second NEL assessment is obtained, while section 42(5) of the 
pre- 1997 Act provides that the Board shall have regard to medical assessments in 
making a NEL decision. Decision No. 229/98 (1999), 52 W.S.I. A.T.R. 45, issued in 
this reporting period and records that, as a result of the Tribunal's concern, the Board 
re-examined its policy on NEL assessments and decided to amend it retroactively. 
All NEL assessments are now considered. And see Decision No. 1943/98 (1999), 52 
W.S.I. A.T.R. 139, which raises the possibility of a section 126(4) referral on the 
Board's classification of a municipally-run home for the aged in Schedule 1 instead 
of Schedule 2. 



Right to Sue Applications 



The workplace safety and insurance scheme and earlier workers' compensation 
statutes are based on a "historic trade-off in which workers gave up the right to sue 
employers in exchange for statutory no-fault benefits. The Tribunal has the exclusive 
jurisdiction to determine whether an injured worker's right to sue his employer in 
court has been removed. Right to sue applications often raise complicated legal 
issues with significant impact on the parties. 

Decision No. 1434/97 (1999), 49 W.S.I.A.T.R. 20, considered whether a worker's 
right to sue a doctor for failure to diagnose properly and treat his workplace injury 
was removed by the Act. The doctor was not an employer under the Act and the 
worker's right of action continued, although it was subrogated to the Board. In 
exercising its discretion to sue in the worker's place, the Board must act reasonably 
but is entitled to consider the interests of the workers' compensation system, as well 
as the individual worker's interests. Decision No. 1279/98 (1999), 50 W.S.I.A.T.R. 
101, held that the Tribunal had jurisdiction on a right to sue application brought by 
an insurer to decide not only whether the insurance benefit claimant was entitled to 
workers' compensation, but also whether the Act took away the right to make an 
election to bring an action even in cases where no court action had been brought. 
And see Decision No. 280/99 (April 14, 1999), which considered a right to sue 
application for injuries sustained in a construction site accident when a cradle for 
erecting a tower collapsed due to improper design and construction, Decision 
No. 893/98 (1999), 50 W.S.I.A.T.R. 74, which involved an action for carbon 
monoxide poisoning causing brain damage brought by a service representative of a 
company which installed and maintained computer services, and Decision 
No. 1790/99 (1999), 52 W.S.I.A.T.R. 255, where a worker sought to sue after being 
denied compensation for injuries due to workplace exposure to chemicals. The fact 



-6- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



that the worker's claim for compensation had been denied by the Board because the 
evidence did not support it, did not mean that he had a right to sue in the courts. 

Benefits Under the Pre-1997 Act 

The pre-1997 Act introduced a dual award system of non-economic loss (NEL) 
awards and future economic loss (FEL) awards. Many appeals at the Tribunal raise 
issues under the pre-1997 Act. 

NEL awards are intended to compensate for pain, suffering and other 
non-economic losses arising from a workplace accident. The pre-1997 Act contains 
detailed provisions for calculating a NEL award based on the percentage of the 
worker's permanent impairment and provides that, where the award is more than 
$10,000, it will be paid as a monthly payment unless the worker elects to receive the 
compensation as lump sum. Decision No. 829/99(1999), 51 W.S.I. A.T.R. 126, 
considered a case where the worker had signed an election to pay his NEL award as 
a lump sum shortly before he died. He was granted a 100% NEL award 
posthumously for mesothelioma. The Panel considered the Board policy about 
elections and reasoned that the Board policy (that a worker could only elect to 
receive a lump sum after the NEL determination was made) made sense in situations 
where the worker was still alive. Where the worker had elected but died before the 
NEL was determined, the merits and justice of the case required that the election be 
given continuing effect after the worker's death. And see Decision No. 650/98 
(1999), 49 W.S.I.A.T.R. 87. 

Decision No. 2197/99 (1999), 52 W.S.I.A.T.R. 298, considered an interesting 
FEL appeal, where the worker had declined surgery and there was medical evidence 
that he was not a good surgical candidate. It was held that the FEL award should be 
based on the worker's actual condition, not on what might have occurred if the 
worker had had the surgery. 

Section 43(8) provides that an older worker may elect to receive a FEL award 
equivalent to the old age security pension where he is at least 55 years of age, has 
not returned to work and is unlikely to benefit from vocational rehabilitation. 
Decision No. 1119/97R (1999), 52 W.S.I.A.T.R. 12, considered the Board's request to 
reconsider Decision No. 1119/97 (1998), 46 W.S.I.A.T.R. 112, which the Board felt 
interpreted section 43(8) as authorizing benefits in circumstances where the worker's 
future loss of earnings was not work-related. The Panel agreed with the Board's 
general position that the Act, including section 43, is intended to compensate 
workers for harm they suffer as a result of work-related injuries. However, it may be 
very difficult to quantify the extent to which a workplace injury affects a worker's 
ability to find and perform jobs, particularly for older workers who may have other 
obstacles to re-entering the work force. In the Panel's view, the original panel had 
found that the workplace injury did have an impact on the worker's future loss of 
earnings and, if the decision were reopened, it was not clear that the result would be 



-7 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



different. To the extent that there is a difference in interpretation between the original 
hearing panel and the Board, the difference could best be addressed in future cases 
where hearing panels would have the opportunity to hear full argument in the context 
of other factual situations and to consider Decision No. 1119/97 and the Board's 
analysis. 



Occupational Disease 



Occupational disease cases raise some of the most medically complicated issues, 
as they involve workplace exposure to harmful processes or substances. The 
legislative structure and the Tribunal's interpretation of the law remain the same. 
Occupational diseases are compensable if they fall under the statutory provisions 
governing "occupational disease" or "disablement." In disablement cases, the 
Tribunal examines the evidence relating to an individual worker to see if it supports a 
causal relationship as well as general medical and scientific evidence. The Board has 
developed policies for a number of occupational diseases, and the Tribunal also 
applies these in reaching its conclusions. 

Decision No. 2201/99 (December 29, 1999), upheld the Board's policy for 
determining the start date for a hearing loss claim. The policy on hearing loss 
requires clinical evidence of hearing loss. Other general policies on disablement and 
occupational disease provide that the date of injury is the date the worker suffers 
impairment, which is defined in the Act as disabling physical or functional 
abnormality or loss. The Board policies provide clarity in making decisions. Decision 
No. 1435/99 (1999), 51 W.S.I. A.T.R. 265, considered a claim involving exposure to 
workplace noise in Alberta and Ontario. The fact that the worker was unable to 
obtain compensation in Alberta for his Alberta exposure was not a basis for granting 
greater compensation in Ontario than that warranted by the Ontario Act. The Panel 
applied the Board policy that calculated entitlement based on the worker's Ontario 
exposure as a percentage of his total noise exposure. 

Decision No. 107/961 (1999), 50 W.S.I. A.T.R. 1, contains an interesting ruling on 
the right to file reply evidence to expert evidence from an epidemiologist. The case 
involved a claim that the worker had died from lung cancer arising from his 
employment in a uranium mine. Decision No. 1265/97R (1999), 51 W.S.I. A.T.R. 38, 
considered the standing of employers to participate in an appeal where the worker 
alleged he had developed sarcoidosis due to working in a number of mines. Decision 
No. 1450/99 (December 2, 1999), illustrates the importance of medical evidence in 
claims for multiple chemical sensitivity. 

An issue which sometimes arises following allowance of an occupational disease 
claim, is how the costs for the claim are to be attributed. Decision No. 534/98 (1999), 
50 W.S.I.A.T.R. 65, rejected the argument that the Board could not attribute the costs 
of a tendonitis claim to an accident employer. The Tribunal distinguished tendonitis 
from tenosynovitis, which is a listed Schedule 3 occupational disease. To find that 



-8- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



tendonitis was also an occupational disease would require a finding that it is peculiar 
to or characteristic of a particular process, trade or occupation. This would have 
far-reaching consequences and would require much better evidence than was 
available in the case. Accordingly, the claim for tendonitis was properly treated as a 
disablement and the Board could attribute the costs of the claim to the accident 
employer. 



Employer Issues 



In 1999, the Tribunal heard a number of appeals involving issues of particular 
interest to employers, such as classifications, SIEF relief, experience rating, late 
payment charges and penalties. The Board has indicated an interest in participating in 
classification appeals as an amicus curiae ("friend of the court"). The scope of the 
Board's participation has been discussed in several cases. See, for example, 
Decisions No. 1080/99 (1999), 51 W.S.I.A.T.R. 190, and 662/991 (1999), 50 
W.S.I.A.T.R. 240. Interesting classification decisions involved an appeal by a pulp 
and paper manufacturer which obtained wood fibre from logging contractors and an 
appeal by a credit card operation run by the credit corporation of a retail store. See 
Decisions No. 1080/99 and 1259/99 (1999), 51 W.S.I.A.T.R. 236. 

The last Annual Report discussed the Tribunal's approach to retroactive NEER 
and CAD-7 experience rating adjustments in light of changes to Board policy 
limiting the time for appeals. It now appears that the time limit for retroactive 
adjustments will only be varied if there are exceptional circumstances and a manifest 
unfairness to the employer. Due diligence on the part of the employer in pursuing the 
relief is not, by itself, a sufficient basis for relief. See Decision No. 1085/98 (1998), 
48 W.S.I.A.T.R. 175, which has been followed in 1999 decisions. Decision 
No. 997/99 (June 10, 1999), also noted that the Board policy with respect to the 
three-year window can "shield" as well as "hurt" the employer, since it may permit 
an employer to avoid an increase in assessment outside the three-year window. This 
balance between "give and take" is an important part of the system. 

In appeals relating to cancellation of late filing penalties, the Tribunal has also 
focused on exceptional circumstances and manifest unfairness. See Decisions No. 
586/99 (1999), 50 W.S.I.A.T.R. 235, and 1365/98 (1999), 51 W.S.I.A.T.R. 89. Time 
limits in Board policy on appeals of penalty assessments have been held to apply to 
internal Board appeals and do not deprive the Tribunal of its jurisdiction to consider 
the merits of the appeal. They do, however, indicate an intent that out-of-time 
appeals should only be allowed in exceptional circumstances. See Decision 
No. 159/99 (1999), 50 W.S.I.A.T.R. 183. 

Employer interest was also reviewed in the last Annual Report. During 1999, 
several Tribunal decisions found that before January 1, 1997, the Board did not have 
a policy on employer interest and awarded interest on the merits and justice, 
recognizing the time value of money. The decisions noted that the Board had an 



-9- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



interest policy as of January 1, 1997, and applied the policy after that date. See, for 
example, Decisions No. 585/98 (1999), 49 W.S.I.A.T.R. 82, and 503/98 (April 12, 
1999). The Board has asked the Tribunal to reconsider these decisions. The Tribunal 
has put other cases involving claims for pre- 1997 employer interest on hold, pending 
determination of these reconsideration requests. 

Miscellaneous 

The appropriate earnings basis for calculating benefits for seasonal workers has 
been reviewed in detail in a number of decisions. There appears to be a developing 
trend to distinguish between temporary disability where the worker's loss may be 
fairly reflected by his earnings at the time of the accident, and long-term disability, 
where it may be fair to calculate earnings over a longer period. See Decisions No. 
221/99 (1999), 50 W.S.I.A.T.R. 193, 332/99 (1999), 50 W.S.I.A.T.R. 220, 139/99 
(1999), 50 W.S.I.A.T.R. 146, 417/99 (1999), 52 W.S.I.A.T.R. 172, and 490/98RI 
(1999), 52 W.S.I.A.T.R. 54. In cases where earnings are calculated over a longer time 
period, the merits and justice of the case may require that employment insurance 
benefits also be included in the earnings basis even though this is not specifically 
referred to in Board policy. See Decisions No. 417/99 and 221/99. 

The Tribunal's new mediation processes have been noted in a number of 
decisions. Decisions No. 1419/99 (1999), 51 W.S.I.A.T.R. 252, and 1420/99 
(August 27, 1999), outline the co-mediation protocol for single-party and two-party 
appeals. Where there are two parties, the co-mediators facilitate settlement 
discussions. If there is one party, they provide a neutral evaluation of the case and, if 
they are satisfied the case has merit and the party consents, they may make a 
recommendation to the Vice-Chair. All communications are confidential unless the 
parties consent to disclosure. 

Cases in the regular stream may also benefit from mediation; Decision 
No. 934/97 (1999), 51 W.S.I.A.T.R. 27, approved an agreement involving a 
Schedule 2 employer. The Panel noted that the Board and Tribunal have the 
statutory authority to approve an agreement between a worker and a Schedule 2 
employer about the amount of compensation payable. Decision No. 1584/981 
(1999), 50 W.S.I.A.T.R. 113, considered an appeal by a worker from a 
Board-approved settlement. The party wanted to appeal only the issue decided 
against him. It was held that, if the appeal proceeded, the Tribunal would 
consider all the issues so as not to undermine the dispute resolution process at 
the Board. The Tribunal adjourned to allow the worker to consider the downside 
risk. 

Decision No. 941/991 (1999), 52 W.S.I.A.T.R. 200, contains an interesting 
discussion of institutional bias in the context of a request for production of 
documents. Since institutional bias focuses on the state of mind of Tribunal 
members, documents relating to the appointment process which members did not 



-10- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



know about and could not reasonably be expected to have known about, were not 
relevant and should not be produced. 

Decisions No. 484/99 (April 7, 1999), and 247/99 (June 24, 1999), reviewed the 
role of the presumption clause where a worker is found dead at work in unexplained 
circumstances. In one case, the worker was found dead at the foot of a ladder after 
having suffered a heart attack, possibly due to electrocution. In the other, a 
25-year-old counsellor at a residence for the developmentally challenged was found 
dead of undetermined causes on the kitchen floor of the residence. Other interesting 
cases included Decision No. 715/98 (1999), 49 W.S.I.A.T.R. 101, which reviewed the 
use of the Friedland formula and the 4% Devitt's table in calculating commutations, 
and Decision No. 290/99 (1999), 52 W.S.I.A.T.R. 150, which considered how long a 
section 147(4) supplement continues if a worker is not eligible for old age security. 

APPLICATIONS FOR JUDICIAL REVIEW 



There was one application for judicial review heard during the review period. An 
application to review Decision No. 702/97 was dismissed by the Divisional Court on 
November 24, 1999. 

At the end of the review period there were five outstanding judicial review 
applications: 

Decision No. 647/95 

Decision No. 1435/97 

Decision No. 1410/98 

Decision No. 309/99 

Decisions No. 1101/97 and 1107/97R. 

OMBUDSMAN COMPLAINTS AND OTHER 
ACTIVITIES 



The 1998 Annual Report noted that the number of case-related Ombudsman 
complaints has been declining over the last few years. In 1998, the Tribunal was 
notified of 16 case-related complaints. This number remained steady in 1999, with 
17 notifications of case-related complaints. Since there are no time limits on 
Ombudsman complaints, notifications received in 1999 did not necessarily deal with 
recent cases. 

The Ombudsman's Office thoroughly investigates case-related complaints and 
considers the reasonableness of the Tribunal's analysis. Most investigations result in 



- 11 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



the Ombudsman concluding that there is no reason to question the Tribunal's 
decision, although a few have resulted in the Tribunal initiating a reconsideration 
process. The one 1998 Ombudsman letter which prompted the Tribunal to undertake 
a reconsideration was disposed of in 1999. After considering the Ombudsman's letter 
and submissions from the worker, the Panel concluded that new evidence did not 
affect the original decision. One Ombudsman letter was received in 1999 which 
prompted a reconsideration process. The Tribunal found that part of the original 
decision should be reconsidered and the reconsideration on the merits was ongoing at 
the close of 1999. 

In 1999, the Ombudsman undertook another review of the timeliness of the 
Tribunal's appeal process and released a final report in April. The report recognized 
the Tribunal's continuing efforts and that the Tribunal cannot control the number of 
appeals that it receives nor is it in a position to deal with the situation on its own. 
The Ombudsman concluded that continued steps are needed. She recommended that 
the Tribunal "take all necessary steps, including requesting additional resources, to 
ensure it is able to process appeals in a timely manner." She also made a related 
recommendation that the Ministry of Labour address the situation and "take all 
necessary steps to ensure that the Workplace Safety and Insurance Appeals Tribunal 
has the capability and resources to fulfil its mandate effectively." The Ombudsman 
added that, while she remained concerned about timeliness, she would not be taking 
any further action now as the Tribunal and Ministry had advised her of a number of 
substantial initiatives. These included a co-ordinated approach on the part of the 
Tribunal, the Board and the Ministry, and additional resources to the Tribunal. As 
discussed previously, the Tribunal's current business and production plan is designed 
to eliminate the Tribunal's appeal backlog by March 31, 2002, without sacrificing the 
quality of adjudication. An update from the Ministry of Labour to the Ombudsman's 
Office in December 1999, reported that good progress was being made toward this 
commitment. 



- 12 - 




Tribunal 
Report 



VICE-CHAIRS, MEMBERS AND STAFF 



Lists of the Vice-Chairs and Members, senior staff and Medical Counsellors who 
were active at the end of the reporting period, as well as a list of 1999 
reappointments and newly appointed Vice-Chairs and Members, can be found in 
Appendix A. 

OFFICE OF COUNSEL TO THE CHAIR 



The Office of Counsel to the Chair (OCC) has been in existence since the 
creation of the Tribunal. It is a legal department separate from the Tribunal Counsel 
Office and is not involved in the hearing process or in making submissions in cases. 
The draft review process, which has been described in prior Annual Reports, is the 
responsibility of Counsel to the Chair and the four Associate Counsel to the Chair. 

Other OCC responsibilities include providing advice to the Chair and Chair's 
Office, training and professional development, current awareness and research, 
administering the reconsideration process, responding to Freedom of Information and 
Protection of Privacy Act issues and complaints, and assisting with Ombudsman 
matters. Given the enactment of the Workplace Safety and Insurance Act and the 
appointment of a number of new Tribunal decision-makers, there was an increased 
emphasis on training during 1999. 

OFFICE OF THE VICE-CHAIR REGISTRAR 



On receipt of an appeal, under the Workplace Safety and Insurance Act, the 
Appeals Tribunal receives the record of an appeal from the Board. This usually 



-13- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



consists of the worker claim file, any necessary employer file, information necessary 
for notice to the respondent and any related files. 

The Tribunal must then process the file for hearing by giving notice to the parties 
and the Board, ensuring that the record is complete and that the case is ready for 
hearing. This work must take place before the hearing is scheduled, and it constitutes 
a significant portion of the Tribunal's work load. 

On October 1, 1999, the Appeals Tribunal reorganized its pre-hearing process in 
order to better manage its cases. The changes introduced on that date included the 
creation of the Office of the Vice-Chair Registrar (OVCR) for the processing of most 
pre-hearing appeals, an ADR unit for non-hearing resolutions, and a Tribunal 
Counsel Office for the processing of complex cases. 

The key features of this reorganization were: 

• the introduction of the Vice-Chair Registrar who can make preliminary 
rulings to ensure more effective case management; 

• the creation of specialized case process streams to allow the Tribunal to 
allocate resources to appeals based on requirements, and to provide parties 
with alternatives to traditional oral hearings; 



• 



the introduction of a Registrar Information Centre (RIC) to respond to party 
and representative inquiries on cases, and requests for information. 



The Vice-Chair Registrar 



The Tribunal's Vice-Chair Registrar is Martha Keil. She may make rulings on 
preliminary and pre-hearing matters such as admissible evidence, jurisdiction and 
issue agenda, on referral by Tribunal staff and the parties. The process may be oral or 
written. She always releases a written decision with reasons. Any request to have a 
matter put to the VCR may be made by request to OVCR staff. 



The Intake Department 



The Intake Department is responsible for the initial processing of an appeal. The 
staff in this department will review the Appeal Application to ensure that it is 
complete and to identify jurisdiction issues. This department also orders the Board 
file and policy statement under section 126 of the WSIA, and streams cases for 
pre-hearing processing. The Intake Department also processes applications for 
extension of time, and applications under section 58 of the WSIA objecting to a 
Board decision to allow access to a worker file. 



-14- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



Prehearing Screening 

The pre-hearing staff reviews all files to ensure that they are ready for hearing. 
This step is necessary to reduce the number of cases which result in adjournments 
and post-hearing investigations due to incomplete issue agenda, outstanding matters 
at the Board or incomplete evidence. The pre-screening process includes written 
appeals as well as early intervention mediation, which is directed at pre-hearing case 
resolution. 

Registrar Information Centre (R1C) 

The RIC answers routine correspondence and inquiries on appeals, as well as 
general public inquiries. This includes the receipt and distribution of evidence 
received after the appeal is made, as well as the distribution of updated Board file 
materials. 

TRIBUNAL COUNSEL OFFICE 



Under the Tribunal's new case processing model, Tribunal Counsel Office (TCO) 
no longer has responsibility for processing the majority of appeals. 

TCO now handles only the most complicated appeals, involving complex or 
novel medical, legal or policy issues. TCO consists of four groups, each reporting to 
General Counsel: the Pre-hearing Group, the Post-hearing Group, the Medical 
Liaison Office, and the Lawyers. 



Pre-hearing Legal Workers 



Pre-hearing legal workers in TCO prepare the case record for appeal. Once it is 
completed, it is sent to Scheduling. The appeal is assigned to a pre-hearing legal 
worker or lawyer depending upon its complexity. Pre-hearing legal workers deal with 
matters that arise prior to the hearing, and provide assistance to the parties if there 
are questions concerning preparation for the appeal. 

Post-hearing Legal Workers 

If a Tribunal vice-chair or panel concludes that additional information is required 
following a hearing, a request for assistance is made to the Post-hearing Group 
leader. The post-hearing legal worker assigned to the case carries out the panel or 
vice-chair's directions, and co-ordinates any necessary input from the parties to the 
appeal. 



-15- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



Lawyers 



TCO has a small group of lawyers who handle the most complex appeals 
involving legal or medical issues. TCO lawyers also provide technical case-related 
advice to the Pre-hearing Group, the Post-Hearing Group, the Early Resolution 
Stream, and the Vice-Chair Registrar Team. In addition, the lawyers provide non- 
appeal-related advice to other departments of the Tribunal. 

One TCO lawyer is assigned on a full-time basis as group leader for the Early 
Resolution Team. One lawyer acts as group leader for the post-hearing legal workers, 
in addition to handling her occupational disease caseload. Workplace stress appeals 
and other complex entitlement issues are assigned to one designated TCO lawyer. 
Another lawyer handles the employer assessment, classification and French language 
appeals. 

TCO lawyers and General Counsel also respond to applications for judicial 
review of Tribunal decisions and other court-related matters. 

Medical Liaison Office 

The Workplace Safety and Insurance Appeals Tribunal must frequently decide 
appeals which raise complex medical issues, or require further medical investigation. 
The Tribunal thus has an interest in ensuring that Panels and Vice-Chairs have 
sufficient and appropriate medical evidence on which to base their decisions. The 
Medical Liaison Office (MLO) plays a major role in identifying and investigating 
medical issues and obtaining medical evidence and information to assist the 
decision-making process. To allow MLO to carry out its mandate, the Tribunal 
ensures that MLO has access to outside medical expertise and resources. 

The Tribunal's relationship with the medical community is viewed as particularly 
important. Ultimately, the quality of the Tribunal's decisions on medical issues is 
dependent on that relationship. MLO co-ordinates and oversees all the Tribunal's 
interactions with the medical community. That relationship remains positive and is 
evidenced by the Tribunal's continuing ability readily to enlist leading members of 
the profession to its service. 

With the exception of mediated cases, MLO reviews all appeals prior to a hearing 
where initial entitlement involves a medical issue. MLO's review identifies those 
cases in which the medical issues may be problematic, complex or novel to the 
Tribunal. Once the issues are identified, MLO may refer the appeal materials to a 
Medical Counsellor. 



-16- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



Medical Counsellors 

The Medical Counsellors are a group of eminent medical specialists, who have 
accepted part-time employment with the Tribunal and serve as consultants to WSIAT 
in the medical area generally. They play a critical role in assisting MLO to carry out 
its mandate and in ensuring the overall medical quality of Tribunal decision-making. 
The Medical Counsellors' Chair is Dr. Ross Fleming. A list of the Medical 
Counsellors is provided in Appendix A. 

The Medical Counsellors review the cases identified by MLO to verify that the 
medical evidence is sufficient and that the record contains any necessary opinions 
from appropriate experts. They also ensure that questions or concerns about the 
medical issues that may need clarification for the Panel or Vice-Chair are identified. 

At the pre-hearing stage, Medical Counsellors advise Tribunal counsel on the 
sufficiency of medical evidence. This may include obtaining further information 
from the patient's treating physician(s). In addition, Medical Counsellors may 
recommend obtaining a Medical Assessor's (see below) opinion if the diagnosis of 
the worker's condition is unclear, or if there is a complex medical problem that 
requires explanation, or if there is an obvious difference of opinion between qualified 
experts. 

At the post-hearing stage, Panels or Vice-Chairs requiring further medical 
investigation may request the assistance of MLO in preparing specific questions that 
may be helpful in resolving medical issues. Medical Counsellors assist MLO in 
providing questions for the consideration of the Panels or Vice-Chairs and 
recommending the most suitable Medical Assessor. 

Medical Assessors 

The Tribunal has the power to initiate medical investigations if it believes it 
necessary in order to determine any medical question on an appeal. Section 134 of 
the Workplace Safety and Insurance Act allows for "health professionals" to assist 
the Tribunal in determining matters of fact. The Tribunal's authorized list of health 
professionals, called Medical Assessors, is known as the Tribunal's "roster." 

Medical Assessors on the roster may be asked to assist the Tribunal in a number 
of ways. Typically, they are asked to give their opinion on some specific medical 
question, which may involve examining a worker and/or studying the medical reports 
of other practitioners. Medical Assessors specialising in a particular field may be 
requested to assist in educating Tribunal staff in a general way about some medical 
theory or procedure. They may be asked for an opinion on the validity of a particular 
theory which a Hearing Panel or Vice-Chair has been asked to accept. They may also 
be asked to comment on the nature, quality or relevancy of medical literature. 



17 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



The opinions of Medical Assessors are normally sought in the form of written 
reports. Copies of the reports are made available to the worker, employer, the Panel 
or Vice-Chair, and the Board. On occasion, a Hearing Panel or Vice-Chair will want 
the opportunity to question the Medical Assessor at the hearing to clarify the 
opinion. In those cases, the Medical Assessor will be asked to appear at the hearing 
and give oral evidence. The parties participating in the appeal, as well as the Panel or 
Vice-Chair, have the opportunity to question and discuss the opinion of the Medical 
Assessor. 

Although references are typically made to the report of the Medical Assessor in 
the Tribunal decision, the Medical Assessor does not make the decision on appeal. 
The actual decision to allow or deny an appeal is the sole preserve of the Tribunal 
Panel or Vice-Chair. 

The Appointment Process for Medical Assessors 

The Act does not specify a process for appointing health practitioners to the 
Tribunal's roster of Medical Assessors. However, the Tribunal has maintained the 
same process used under the pre- 1997 Act, with the exception that the approval of 
the Lieutenant Governor in Council is no longer required. 

That process involves obtaining a list of potential candidates from the Medical 
Counsellors. Those identified are asked to allow their names to be entered into the 
appointment process. Those candidates who agree to be nominated and who supply a 
resume will have their names circulated to all the Medical Counsellors and to 
members of the Advisory Group. The Advisory Group is composed of experienced 
representatives from both the injured worker and employer communities. The 
Tribunal considers the views of the Medical Counsellors and the Advisory Group 
when determining the selection for the roster from the available candidates. 
Appointments are for a three-year term, and may be renewed, subject to approval 
through the Tribunal's process as described. 

Library 

MLO places medical articles, medical discussion papers, and anonymized appeal 
transcripts of expert evidence on medical or scientific issues in the Ontario 
Workplace Tribunals Library. This collection of medical information specific to 
issues that arise in the workers' compensation field is unique within the Ontario 
WSIB system and is accessible to the public. 

Database 

MLO uses a Tribunal-designed database to help track medical issues, information 
and appeals at the Tribunal. The database provides an easily accessible way to 



-18- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



determine what information already exists within WSIAT that may be useful in 
appeals with similar medical fact situation. 

Medical Review 

In addition to case-specific medical evidence, MLO co-ordinates an annual 
medical review of Tribunal decisions. The medical review is internal to the Tribunal. 
Its purpose is to obtain, from the Medical Counsellors, a medical professional's 
perspective on the manner in which medical facts or theories are treated or recorded 
in WSIAT decisions. The medical review permits the Tribunal to evaluate its 
processes and practices as they relate to medical issues and medical evidence. The 
medical review highlights areas for further education of Tribunal Vice-Chairs, Panels 
and staff through medical education initiatives. 

INFORMATION DEPARTMENT 



Library Services 

In December 1998, the libraries of the Workplace Safety and Insurance Appeals 
Tribunal, the Ontario Labour Relations Board and the Pay Equity Commission were 
merged to form the Ontario Workplace Tribunals Library. 

The new library occupies the space of the former WSIAT Library. Extra shelving 
was added and the shelving layout altered to accommodate the three collections. All 
three collections were weeded to eliminate duplicates and materials no longer 
required. The staff of the WSIAT library were joined by a staff member from the 
OLRB. 

Once the staff and collections were physically accommodated, the process of 
integrating the collections began. A student from the University of Toronto Faculty of 
Information Studies was hired for the summer months to assist with the integration of the 
book catalogues. Work has begun on creating databases to provide in-house electronic 
access to some categories of OLRB decisions, the first being the occupational health and 
safety decisions. The collection of pay equity periodical articles was integrated into the 
existing WSIAT files and an index record for each item created in the existing WSIAT 
database. Work remains to be done on these and other integration projects. A major 
redesign and merger of two Cardbox databases was undertaken to facilitate tracking of 
acquisitions and charge-backs to the various tribunals. Document delivery charges and 
services were revised to accommodate the large number of OLRB decisions and 
certificates the library distributes to external clients. 

Library staff educated themselves in the new subject specialties. Primary 
responsibility for reference service remains with subject specialists but the aim is to 



-19- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 



provide full coverage for all subjects during vacations and other leaves. Current 
awareness services were customized for each Tribunal. A brochure describing the 
new library's collection and services was produced. 

Decisions on acquisitions are made jointly by the librarians with deference to 
subject specialists. 

Acquisition of documents posted on the Internet began to supplement traditional 
methods. Internet access for library users was established and a collection of useful sites 
begun with a view to providing access directly via the Internet to some documents. 

One of the librarians was partially seconded to the OLRB to create an Internet 
web site for that organization. The same librarian worked on projects associated with 
the Publications Department, notably the creation of a CD-ROM-based version of the 
WSIAT Decision Digest Service and a CD-ROM service providing full text of 
WSIAT decisions. 

Library Statistics 



REFERENCE 



Directional 
2,974 



Reference 
2,659 



Total 
5,633 



CIRCULATION 


Books Journals Gov. Docs. 
Outgoing 


ILL Other Total 




337 81 32 


31 1 482 


ADDITIONS TO 


Books and Government 


Items Indexed in the 


THE COLLECTION* 


Documents 


"Library" file 




1,291 


1,501 


INTERLIBRARY LOAN 


Books Articles 


Cases Total 


AND DOCUMENT 
DELIVERY (INCOMING) 


30 76 


195 271 


DOCUMENT DELIVERY 






(OUTGOING)** 


2000 





Records added to previous WSIAT Library databases. Includes new and recatalogued items. 
This Figure is an estimate based on information taken from the "Invoices" file. 



-20- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



Publications 

WS1AT Decisions On CD-ROM 

For readers who wished to have immediate access to the full-text of all Tribunal 
decisions, from their own premises, the only source was on-line services maintained 
by external providers. These consist of fully searchable databases, for which fees are 
charged for search time. (The full text of selected decisions has been available 
through the Tribunal's own W.S.I.A.T. Reporter. All decisions are also available at 
the Tribunal Library and the full text of any decision can be ordered through the 
Publications Department's photocopy service.) 

In 1999, the WSIAT Decisions On CD-ROM was conceived, to be made available 
for the 2000 subscription year. It contains the full text of the Tribunal's decisions 
together with the summaries of those decisions. This service is not a searchable 
database, but subscribers can select individual decisions and display or print them. 
The service is updated quarterly. See the 2000 Order Form, which can be obtained 
from the Publications Department, for pricing details. 

DDS On Disk 

Our summary service is available in paper format as the Decision Digest Service 
(DDS) and in electronic format as the DDS On Disk. Previously, new subscribers 
could only receive the DDS On Disk database on diskette. This involved loading ten 
diskettes onto the subscriber's system. Another option was added in 1999, such that 
subscribers can instead choose to receive the database on just one CD-ROM. Updates 
to the DDS On Disk now are available monthly on diskette and quarterly on 
CD-ROM. 

The one-time software licence fee ($50 plus GST) for new DDS On Disk 
subscribers was eliminated. 

Neutral Citation Standard 

The Tribunal has decided to adopt the Neutral Citation Standard (NCS), starting 
with decisions released in the year 2000. The NCS was developed by the Canadian 
Citation Committee of the Canadian Judicial Council, for use by courts and 
administrative tribunals. 

Previously, a committee of the Canadian Judicial Council developed standards 
for preparation of judgments in electronic form. Those standards included the 
paragraph numbering that the Tribunal has adopted for its decisions. With the NCS, 
the court or tribunal assigns a permanent citation at the time a decision is released. 
The NCS does not replace the decision numbers of Tribunal decisions. Rather, it 



-21 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



provides a uniform and unique citation to identify a decision wherever that decision 
may be found. 

Decisions 

The Publications Department released 2,864 Tribunal decisions in 1999. It 
summarized 2,776 decisions in 1999. Both of these figures represent an increase of 
more than 400 decisions over 1998. The number of decisions released and 
summarized annually has more than doubled in the last five years. 

Looking Ahead 

The Tribunal restructured its administrative processes, in 1999. As a result, many 
of the Tribunal Counsel Office's former duties have been assumed by the newly 
created Office of the Vice-Chair Registrar. The package of Practice Directions will 
be reviewed for amendments required by these changes. 



STATISTICAL SUMMARY 



Overview 

As outlined in previous reports, the Tribunal has undergone a period of sustained 
caseload pressures. These pressures were driven by successive years of expanding 
caseload intake. In the early 1990s, the annual intake levels had been relatively stable 
at approximately 2,000 cases. Then, beginning in the middle part of the decade, and 
in response to several factors that have been outlined elsewhere, the Tribunal's intake 
began to rise, doubling in magnitude by 1996 and then doubling again within a very 
short time. In 1998, the annual intake exceeded 11,000 cases. 

During this period of intake expansion, the Tribunal's disposition rates also rose 
quite dramatically. While the disposition increases were remarkable, they were 
nonetheless not strong enough to prevent the Tribunal's caseload inventory from 
expanding in the face of this overwhelming intake demand. 

Fortunately, the 1999 statistical trends suggest a gradual return toward normalcy 
in terms of caseload intake. The Tribunal's output more than matched intake volumes 
and, by year-end, the Tribunal had registered a net decrease in terms of remaining 
caseload inventory. 

Together with the Ministry of Labour, the Tribunal outlined an aggressive 
strategy for decreasing the inventory backlog which had accumulated during the 
previous years of expanded intake. This strategy defines specific inventory reduction 



-22 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



targets each quarter. Early into this plan, the Tribunal is able to report success in 
meeting these aggressive targets. 

Cases Received 

The breakdown of incoming cases is presented by year and by appeal type in 
Chart 1 (p. 28). Total volume of cases started in 1999 was considerably less than in 
1998, for reasons briefly described in the Overview. 

Within the incoming caseload, the proportional representation of each case 
category was similar to its 1998 counterpart. "Special Section" cases (Leave, Right 
to Sue, Medical Exam and Access) represented just under 4% of the total intake, as 
compared to just under 3% last year. The entitlement category once again represented 
the vast majority of all appeals (89% in 1999 compared with 92% in 1998). 
Post-decision cases represented a typically small portion. 

At 5.6% of total caseload intake, the portion represented by "Post-decision" cases 
(Reconsideration, Ombudsman and Judicial Review) is fairly typical in an historical 
context, despite a procedural change which resulted in the tracking of all 
reconsideration queries, as opposed to earlier practice which reported on only cases 
which were converted into formal reconsiderations. 

A broader picture of the caseload trend throughout the adjudicative system since 
1990 is provided in Chart 9 (p. 36). The chart shows the relationship of Workplace 
Safety and Insurance Board appeals to the Tribunal's caseload. 



Case Dispositions 



The breakdown of case dispositions (closed or deactivated) in 1999 is shown in 
Chart 2 (p. 29). In 1999, the Tribunal disposed of 6,715 cases. On average, 
dispositions increased 19% each year from 1994 to 1997. In 1998, excluding 3,300 
bookmarked dispositions, there were 4,730 case dispositions, which represented a 
54% increase over 1997. Turning to 1999, again excluding the 3,300 bookmarked 
cases, the 6,715 dispositions represented a 42% increase over 1998. 

A breakdown of dispositions by processing stage is presented in Chart 3 (p. 30). 
Two stages are presented - "Before Hearing " and "After Hearing." As the chart 
shows, the majority of dispositions occurred before a hearing, with the exception of 
Right to Sue applications which usually required a hearing owing to the complex 
nature of these cases. 

Dispositions at the Before Hearing stage for Medical Exam, Access and Leave 
and for Judicial Review, Ombudsman Request and Reconsideration were 89% and 
52% respectively. The high disposition rate for Medical Exam, Access and Leave 



-23 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



cases in the Before Hearing stage reflects the Tribunal's focus on achieving early 
dispositions for suitable cases. With respect to the After Hearing dispositions, the 
category "Disposition following Tribunal Decision," includes both decisions issued 
by an Adjudicator after a formal hearing and decisions issued following a review of 
the Reconsideration application. 

Chart 4 (p. 31) provides information regarding the overall completion times, i.e. 
age of cases, for cases disposed of in 1999. The completion time on this chart is 
calculated by subtracting the start date from the date the case was disposed of (made 
inactive or closed). It is important to note that the Tribunal cannot begin work on an 
appeal until it has received a completed Appeal Application. 

Chart 4 shows that within the Medical Exam, Access and Leave case category, 
nearly all were completed within six months (87%). Most Reconsideration requests 
were also completed within that period (70%). Those appeal types are a relatively 
minor component of the Tribunal's entire caseload and the majority of the Tribunal 
caseload falls under the Entitlement group. 

The Tribunal views pre-hearing dispositions favourably. Mediation or other types 
of early intervention can provide appellants with a satisfactory outcome well ahead 
of the time it would have taken to have a hearing. It additionally benefits the 
Tribunal because it clears space for more complex cases to proceed to a hearing 
which, if not for the early intervention, may have been taken by a case which dealt 
with, for example, a straightforward jurisdiction matter in which no Tribunal decision 
could be rendered because the appellant had yet to get a final decision from WSIB on 
the issue appealed to the Tribunal. 

Case dispositions between 12 and 18 months, and after 18 months, constitute 
25% and 30% of all Entitlement appeals. These cases would be comprised, for the 
most part, of appeals which went to a hearing and received a Final Decision from the 
Tribunal. After a hearing, the most critical factor affecting time to disposition is 
whether additional information is required, e.g. medical reports, and whether an 
additional hearing is required. In those instances, the Tribunal relies upon external 
sources to provide the information or ensure availability for the next hearing. When 
the Vice-Chair has all the information to write the decision, the median time to 
decision release is 48 days. For the year 2000, the Tribunal will be asking the parties 
to certify that all the information necessary for a Final Decision is available for the 
hearing. Doing so should reduce the number of cases that require extensive post- 
hearing work. 



Remaining Inventory 



The Tribunal's inventory from 1985 through 1999 is shown graphically in 
Chart 5 (p. 32). Cases received and case dispositions are represented by the vertical 
bars, the cumulative inventory (the difference between cases opened and disposed, 



-24- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



accumulated each year) by the line. As the chart shows, the Tribunal's rate of 
incoming cases to dispositions remained fairly constant until the end of 1995, at 
which time the cumulative inventory was approximately 2,400 cases. Throughout 
1996, the number of incoming cases exceeded the disposition rate, resulting in an 
increase in the cumulative inventory to approximately 3,500 cases by year-end. In 
1997 and 1998, the volume of incoming cases grew at an increasing rate. The 
Tribunal increased its dispositions (nearly 400% increase since 1990) but was unable 
to keep pace with the volume of incoming cases (620% increase since 1990). 
Consequently, by the end of 1998, the cumulative inventory had grown to 
approximately 8,600 cases and continued in 1999, breaking through the 9,000 case 
level in September. 

But by year-end, the Tribunal had reduced its cumulative inventory for the first 
time since 1991. This can largely be attributed to a decrease in the number of cases 
started and a significant increase in the number of Tribunal dispositions, as noted in 
the Overview to the Statistical Summary. 

Compared to 1998, and excluding the 3,300 bookmarked cases from 1998 totals, 
there were 1,238 fewer cases started in 1999, a 19% decrease. With respect to case 
dispositions, there were 1,985 more case dispositions in 1999 than in 1998, a 42% 
increase. 

A breakdown of the cases in the Tribunal's active inventory is presented in 
Chart 6 (p. 33). This chart provides a snapshot of distribution of cases at the 
Tribunal. It is apparent that most of the cases are in either the Initial Preparation or 
Pre-hearing Process stage - TCO Pre-hearing work (68%of all active cases). 

In the Post-hearing stage, the TCO or OCC Follow-up process accounts for 4% 
of all active cases. This figure, although relatively low, represents cases which had a 
hearing but require, for example, additional medical reports, WSIB information or 
more evidence before a Final Decision can be written. Another hearing date may also 
be required. Although relatively few, these cases have significant impact on the 
Tribunal's disposition productivity. They effectively double the workload for the 
Scheduling department and the Vice-Chairs because they need to deal with these old 
cases and at the same time accommodate new cases requiring a hearing and a 
decision. 

Finally, WSIAT Decision-writing process represented 9% of all active cases. 



-25 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



Comparative Statistics for 1999 Hearings 
and Decision Productivity 

In Chart 7 (p. 34), the Tribunal's workload with respect to the Scheduling of 
Hearings, number of Hearings Conducted, Cases Heard, Decisions Issued and 
Dispositions by Decision, is presented for the years 1994 to 1999. 

As shown in the column labeled "per cent Change from Previous Year," except 
for the three pre-decision categories in 1995, the Tribunal made productivity gains 
each year from 1994 to 1999. (1998 bookmarked cases are not a factor in these 
production figures because those cases were made Inactive well before the 
Scheduling process.) A comparison of the production between 1994 and 1999 shows 
that the Tribunal's productivity increased by more than 100% in most of the key 
categories. 

A breakdown of the Cases Heard category (but not shown on the chart), indicates 
that single adjudicators were used in approximately 56% of all hearings in 1999 and 
the tri-partite panels in approximately 44%. Hearing type breakdown reveals that 
formal Oral hearings continued to be the most common hearing type at 75%, the 
Written hearing type was used in 16% of the hearing, the remaining 10% of all 
hearings in 1999 involved Teleconferences, or Motions Day. These percentages are 
roughly the same as the 1998 hearing type breakdown. 

Chart 8 (p. 35) shows the breakdown of decision types. Final Decisions represent 
the largest decision type (79%), followed by Interim Decisions (14%) and finally 
Reconsideration Decisions (7%). In comparison to 1998, Final Decisions have 
increased by 3%, Interim Decisions have decreased by 4% and Reconsiderations 
have increased by 1%. 

Party Representation 

This section briefly summarizes party representation. 

Categorized on the basis of all cases which involved a completed Appeal 
Application, the 1999 caseload showed the following for worker representation: 40% 
were represented by consultants, 20% by lawyers, 17% by the Office of the Worker 
Adviser and 16% by union representatives. The remaining 7% was allocated among 
various non-categorized representation (family friend, family member, MPP, Legal 
Aid). 

According to this same categorization, employer representation showed: 65% 
were represented by consultants, Lawyers were retained 19% of the time, company 
personnel were used 7% of the time and the Office of the Employer Adviser was 
used 5% of the time. The remaining 4% was non-categorized. 



-26- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



FINANCIAL MATTERS 



A Statement of Expenditures and Variances for the year ended December 31, 
1999, (Chart 10, p. 37) is included in this report. 

The accounting firm of Deloitte & Touche has completed a financial audit on the 
Tribunal's financial statements for the period ending December 31, 1999. The audit 
reports are included in this report as Appendix B. 



-27- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 






a 

s ": 



e 
s 

I 



2 



U OQ <£> 



cn & 


O 


in 


o 


col 




cn 


T 






CO 




^T 




col en 


o 


CM 




O CO 


r* 












O 


O 


o 


CO 




Cl 


in 


CD 


CO 


on 


CO 


o 


ol CO 


o 


o 




ol in 














C30 












— 










* 






CO 






















CZO 


















































*~ 6 
Z 


co 


lo 




eni 


00 




CO 


■3- 


OO 


CO 


^3 


CM 


CD 




CM 


CO 


CO 


C3I «■ 


CO 


CO 












CO 




° 


«■ 


r~ 


CM 


p- 




in 


CM 


CMI 




"3"l CO 






-3- 


(0 




in 
















cmI 


CM 






co 




m 


CM 


*3" 




oo 






co 


CO 




in 






















■ 










CO 






in 












CO 










oo £ 


._ 


^r 


o 


"1 


en 


cn 


m 


._ 


CO 


o 


in 


co 


,_ 


ol o 


CD 


CM 


CO 


CDI CO 


CM 












cb 


o 


o 


cj 


est 




CD 


^> 


CD 


CO 


CNI 


CM 




H oi 


o 


o 


CN 


cd'I CO 


CM 












OO 












CM 










LD 






en 






















03 


















































Z 


1 — 


CD 


CD 


col 


CM 


O 


LIO 


o 


r-~ 


OO 


CM 


o 


UO 


0| CM 


>3" 


CD 


1 — 


Ol i- 


cn 


* 












OO 




H 


CM 


^- 


CO 


uo 


oo 


oo 


CM 






— o 




CM 


O 


CO 


CO 


cn 
















cmI 


CO 


in 




<3" 




CO 


CO 


CO 




^1 «S 






CO 


CO 


CM 


o 






















CM 










UO 






a 






















CO 


^- 


cn 


UO 


"1 


CM 


in 


r. 


cn 


o 


9 


cn 


o 


CO 


■i «•» 


_ 


,-. 


CO 


ol o 


in 












CD 


o 


O 


col 


CO 




o 


^3' 








o 


o 


cmI co 


CD 


CD 


CO 


cdI ^ 
































■"" 


ir> 






CO 






















CO 


















































Z 


CO 


co 


CO 


°l 


O 


in 


uo 


CO 


oo 


OO 


r» 


o 


O 


r-i en 


CO 


CO 


r- 


Ol CO 


P» 


CM 












«3- 


CM 


co 


CM 


r— 


CO 


lO 


«3- 


CXI 


co 




-3- 


o ^ 




CO 


CO 


o 


r- 


CM 


CM 
CO 














col 


«■ 






CM 




CO 


coo 






--I «»■ 








CM 


































CM 






«■ 












in 








co £ 

CZO 


CO 


■o- 


CO 


"1 


CO 


o 


CO 


,_ 


rsi 


p. 


CSI 


p 


cn 


■*| m . 


^ 


■a. 


r^ 


Ol CM 


r* 




CQ 


CN 






d 


"~ 


CD 


d 


V 


CD 


° 


^ 


*" 


■* 


cn 
an 


CD 


CD 


col r*. 


CD 


*" 


CO 


cd'I in 


CM 




JZ> 


CO 






CZO 










































TO 


r= 






Z 


CM 


coo 


CO 


°l 


«■ 


o 


OO 


r- 


CM 


CD 


CO 


o 


CM 


.-1 CO 


in 


cn 


CM 


Ol CO 


OO 


to 


eo 


QQ 








•3- 


CM 


cn 


CO 




CO 


LO 


■3- 


r~ 


CO 




CO 


CM 00 




*3 


CO 


00 


en 


a 


u 














■a-l 


m 






CM 












— 1 r» 












CO 


3 




























CNI 






CM 












CO 


TD 
















































O 


TD 


















































CO 
















































CZ 


O 






ID g 




CO 




°! 


p* 


CD 




CO 


^3" 


CO 




CD 




*3-| CO 


CM 






Ol «• 
ol co 








3 












a 


CO 


CD 


o 


csi 






CO 


CD 




c^l r; 


CD 




■* 


CM 




CO 


TD 






co 








cnI 


CM 












in 






CO 
















O 






CO 










































CO 








Z 


r— 


m 


CO 


M 


in 


CD 


CM 


CO 


CO 


r— 


m 


O 


CO 


cool in 


UO 


O 


UO 


oi e 


00 


CO 


o 


c 








^ 


CM 


co 


in 






CO 


oo 


r~ 


m 




CO 


r— 1 oo 




UO 


coo 


in 


«* 


CO 














«an 


in 












CM 






in 












CO 




CO 




























■— 


















CM 


c 
o 


tz 






00 


oo 


CM 


cn 


°l 


cn 


CD 


LiO 


LT) 


CO 


CO 




p 


UO 


col in 
col CO 




CO 


— 


CDI CO 


CO 




c 

CD 


CD 

E 

CD 






o 


CN 




H 




CD 








OC 


o 




CM 


CD 




CO 


ol in 


CO 




o_ 












cnI 


CM 












an 






CO 














C/) 


'5 






OJ 










































GO 


cr 






"— 6 

Z 


1 — 


CJ> 




col 


CO 


o 


CM 


^3" 


LCO 


CO 


CO 


CD 


CO 


OI 00 


CO 


UO 


"3- 


cdi r«. 


CO 




_o 


CD 








<* 


"3- 


M 






OO 


CO 


CO 


uo 


CD 




UO 


col en 




CO 


P^ 




P>- 


e 
















ml 


CO 


















CO 












CM 


CD 


CZ 














































CM 


E 

o 

CZ 


o 

to 






5 

CO — 
OJ 

en 


CO 


CN 


CO 






CD 


en 


UD 




r-j 


cn 


o 


CO 


COl CO 
col CO 


**; 


CO 


cn 


oi m 
ol in 


to 




o 








o 


uo 


Ovi 


M 




CD 


Co" 


CD 






ir> 


o 


CNI 


CD 




CN 


CO 




o 


\B 














CO 












T 






in 














CO 
CO 


CO 
-£= 
CD 






*— b 
Z 


co 


OO 


oo 


i — 1 


CO 


o 


>3- 


CO 


CO 


CO 


C30 


CD 


COO 


cmi en 


cn 


CD 


OO 


CDI CM 


r>» 


* 


3 










"3" 




CO 




CO 




CO 


CM 


CO 




■3" 


H CO 




UO 


CD 


CM 


r-> 


in 














LIO| 


(0 












CD 






CM 














ZJ 


CO 














































CM 


TD 

CZ 
CO 


CZ 

o 

to 






CM £ 


CO 


CO 

cb 


3 


unj 

o 


ID 
CO 


CD 
CD 


CM 
CO 


CNI 
O 


^ 


2 


un 




CN 
CN 


35 


CD 


CM 


CO 


Ol CM 

cd'I co 


in 




c/> 


o 
o 






CX> 










CO 
































o 


> 






cn 












































TD 
CD 
CO 


"3- 




*~ 6 

z 


in 


T 


CO 


°l 


in 


O 


CO 


CO 


CO 


UO 


CO 




cn 


cool CO 


P^ 


^T 




Ol CM 


CO 


CO 


u 


en 




CO 


CM 


r— 


M 


e 




L!0 




CM 


CM 






oo 


— 1 00 




"3" 


CO 




e 


a 


I 


cn 










col 


CO 












OO 






en 












00 


CO 














































*~ 


o 
tz 
o 


CD 

o 


o 




g 


p 


o 

CO 


J 


UOj 
CD 


CD 


CD 
CD 


O 


o 
o 


o 


J 


cn 
cn 




o 

CN 


cdI cm 


CO 
CD 


* 


^3" 


Ol CO 

o'[ eri 


CO 
CM 




u 

cu 


c 

CO 


o 














CO 


















in 














tz 


JZ 


a. 




05 










































o 






CD 










































CZ 


o 


TD 




*" b 

Z 


* — 


r~ 


UO 


*l 


r» 


O 


CM 


CD 


CO 


CO 


CO 




^> 


^-1 «t 


^3- 


UO 


UO 


Ol «»• 


«■ 


cn 


o 


CD 

CZ 
CD 
Q. 




CO 


CM 


CO 


CM 


«f 












CO 




oo 


CO 




CO 


CO 


in 


^ 


r» 








•— 




col 


in 












1 — 






00 








*— 




in 


T3 


TD 
CO 














































CO 

to 


to 

CD 


O 
CO 




s« 


CO 


cn 




cni 


^- 


o 




CD 


CD 










a CM 




CO 


oo 


CD| CO 


CO 




CO 




CO 




CN 




CO 


cn 


CO 


CD 










CO 




CD 


CD 


in 


uo 


cd'I ^ 


CM 






CO 


CD 




O 










CO 
































eg 


a. 




C30 

cn 










































CO 
ci 


CO 
CD 


CO- 
CO 




"~ b 
z 


«3- 


«— 


CM 


U0| 


CM 


O 


1 — 


CD 


CO 


CO 


o- 




«— 


col «- 


CD 


CM 


i — 


CDI CO 


00 


«• 


CD- 


CO 


B 

o 




«3- 


CM 


in 


OO 






CMI 


^ 




CM 


<t 






a ■- 




CO 


CO 


|M. 


CO 


CO 


CD. 






^— 




cmI 


m 










p~ 






Cl 00 








^ 




in 


CO 














































•" 


M 

tz 

CO 
00 
CD 


CO 


to 
o 














































CD 
CO 
CD 


CO 
































































- 






























CD- 


CD- 


CD 














c 
o 

o 

CU 


TD 
CD 

O 

CU 

o_ 
v> 








CD 




CD 

e 

CO 
CD 
TD 




* ■§ 

* IS 
c 2 
.2 £ 

1 T= 








E 
O 
CO 






CD 

o 

CD) 
CO 

to 


2f 

C^ 

o 

cn 

CD 

to 


3 
O 

CD 
CD 
g 




LU 

a. 

>- 

CO 

1— 

a. 

z 






E 




c/> 

"<5 
"o 


co 

>- 

o 

CZ 




* 


C" 


E 

CO 
CO 
CD 
CO 




CD 
CD 

TD 
CO 


C 


■ §3 

CO *^ 






c- 
o 


'5 

* ■§ 

* T 


e 
o 




u 

CO 

Irz 

1— 


CD 
CO 

JZ 

p 


CD 
CD 

.CZ 

p- 




> 

CO 
CO 


O) 

a 
to 
o 

C3> 


CD 
X 

LU 

to 

CD 

TD 
CD 

2 


CO 
CO 

CD 

o 

o 


cu 
n. 
</> 

To 
►2 


03 

cz 
E 

cu 


tz 
o 

CO 

t= 

CD 


i 

LU 

— i 


o 

E 
E 
o 


CO 

< 

CD 
D^ 
O 
Q. 

E 


CD 
E 
_CD 


§ 

to 

o 
a. 

X 


CD 

E 

CD 
CO 

to 

C 
CD 


e i 

CO LU 

CZ _ 
O CO 

CO ,o 
O r— 

O 


'> 
0} 

oz 
o 

TD 

Z) 


e 

CO 

E 

CO 

TD 

ZJ 

E 


to 

CD 
TD 
CO 
C 
O 
O 
CD 


.2 rf 


u 

3 


_i 

O 
r- 


LU 

r- 
O 
Z 


LU 

K- 
O 
Z 

* 


LU 

p- 
o 

Z 

* 
* 




1 


CC 


< 




aZ 


Cl- 


2 


o 


LU 


LJJ 


UJ 


CC 


> 


~3 


o 


cn 


o 






* 


* 


* 





-28- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 



CHART 2 

Breakdown of Case Dispositions by Appeal Type 

for the years 1994 - 1999 





1994 


1995 


1996 


1997 


1998 


1999 


OUTPUT BY TYPE 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


Leave 


15 


0.8 


15 


0.7 


16 


0.6 


11 


0.4 


12 


0.1 


6 


0.0 


Right to Sue 


84 


4.7 


57 


2.7 


49 


2.0 


74 


2.4 


39 


0.5 


41 


0.0 


Medical Exam 


40 


2.2 


29 


1.4 


26 


1.0 


25 


0.8 


11 


0.1 


3 


0.0 


Access 


499 


27.8 


475 


22.2 


469 


18.7 


359 


11.7 


262 


13 


249 


oo 


Total Special Section 


638 


35.6 


576 


26.9 


560 


22.3 


469 


15.3 


324 


4.0 


299 


4.5 


Preliminary (not yet specified) 





0.0 





0.0 





0.0 


55 


1.8 


2247 


28.0 


970 


14.4 


Pension 


49 


2.7 


54 


2.5 


28 


1.1 


26 


0.8 


27 


0.3 


30 


0.4 


N.E.L./F.E.L. * 


12 


0.7 


31 


1.4 


58 


2.3 


171 


5.6 


251 


3.1 


329 


4.9 


Commutation 


34 


1.9 


29 


1.4 


41 


1.6 


31 


1.0 


40 


0.5 


35 


0.5 


Employer Assessment 


22 


1.2 


41 


1.9 


85 


3.4 


211 


6.9 


369 


4.6 


1013 


15.1 


Entitlement 


771 


43.0 


1112 


51.9 


1306 


52.1 


1690 


55.0 


4114 


51.2 


3266 


48.6 


Ext post WSIB dec. deadline 





0.0 





0.0 





0.0 





0.0 


8 


0.1 


146 


2.2 


Reinstatement 


28 


1.6 


57 


2.7 


55 


2.2 


45 


1.5 


36 


0.4 


17 


0.3 


Vocational Rehabilitation ** 


52 


2_J 


65 


10 


82 


13 


102 


13 


94 


12. 


106 


11 


Total Entitlement-related 


968 


54.0 


1389 


64.8 


1655 


66.0 


2331 


75.9 


7186 


89.5 


5912 


88.0 


Judicial Review 


3 


0.2 


7 


0.3 


6 


0.2 


6 


0.2 


3 


0.0 


1 


0.0 


Ombudsman 


42 


2.3 


42 


2.0 


52 


2.1 


46 


1.5 


23 


0.3 


27 


0.3 


Reconsideration 


63 


3.5 


85 


4.0 


125 


5.0 


114 


3.7 


276 


3.4 


355 


4.4 


Clarification *** 





oo 





00 





00 





00 





oo 





OO 


Total Post-decision 


108 


6.0 


134 


6.3 


183 


7.3 


166 


5.4 


302 


3.8 


383 


5.7 


Jurisdiction 


79 


4.4 


43 


2.0 


111 


4.4 


107 


3.5 


218 


2.7 


383 


5.7 


TOTAL 


1793 




2142 




2509 




3073 




8030 




6715 




* NOTE: This category represents appeals related to non-economic loss and future economic loss pension criteria 




introduced by Bill 162. 


























** NOTE: This category represents appeals related to the increased vocational rehabilitation requirements introduced by 


Bill 162. 


























*** NOTE: There were four clarification appeals closed prior to 1 994. 

















-29- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 



CHART 3 

Case Dispositions in 1999 

(by Processing Stage and Appeal Category) 





Access, 

Medical Exam 

and Leave 


Right 
to Sue 


Entitlement 


Judicial Review, 
Ombudsman 
Request and 

Reconsideration 


Total 


DISPOSITION STAGE 












Before Hearing 

Withdrawn by Appellant 
Settled at Tribunal 
Made Inactive or No Reply 
Found Non Jurisdictional 
Other 
Subtotal 


207 

1 

3 



18 

229 


5 
4 
1 

1 
11 


395 


3071 
120 
203 

3789 


7 


98 
1 

93 
199 


614 
5 

3173 
121 
3J5 

4228 


Per cent of Appeal Total 


88.8% 


26.8% 


62.8% 


52.0% 


63.0% 


After Hearing 

Withdrawn by Appellant without Decision 
Made Inactive or No Reply 
Re-Activated 

Disposed Of following Tribunal Decision* 
Subtotal 






29 
29 




1 



29 

30 


13 

198 

1 

2032 

2244 


1 

2 

11 

170 

184 


14 
201 

12 
2260 
2487 ! 


Per cent of Appeal Total 


11.2% 


73.2% 


37.2% 


48.0% 


37.0% 


TOTAL 


258 


41 


6033 


383 


6715 


* This includes decisions issued for all appeal types, including Post-decision. 



-30- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 



CHART 4 

Distribution of Completion Times from 

Date Appeal Started to Disposition Date* 



Percentage of Case Dispositions in 1999 





Within 


Between 6 


Between 12 


More than 


Appeal 




6 Months 


and 12 Months 


and 18 Months 


18 Months 


Type 




















Total 


Appeal Type 




















Medical Exam, Access & Leave 


225 


87% 


20 


8% 


9 


3% 


4 


2% 


258 


Right to Sue 


5 


12% 


16 


39% 


7 


17% 


13 


32% 


41 


Reconsideration 


250 


70% 


58 


16% 


17 


5% 


10 


8% 


355 


Ombudsman & Judicial Review 


17 


61% 


4 


14% 





0% 


7 


25% 


28 


Entitlement** 


1412 


23% 


1297 


21% 


1535 


25% 


1789 


30% 


6033 


Total 


1909 


28.4% 


1395 


20.8% 


1568 


23.4% 


1843 


27.4% 


6715 



Note: 



Disposition date is date appeal made Inactive or Closed, whichever was first. 

The Entitlement appeal category also includes leave applications, reinstatement appeals, vocational rehabilitation appeals, 

employer assessments, pension appeals, commutation appeals, wage loss appeals and appeals deemed to be jurisdiction 

issues. 



-31 - 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 



CHART 5 

Cases Received, Case Dispositions and 

Remaining Case Inventory 



12000 



10000 



8000 



6000 



4000 



2000 





1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1 



999 



RECEIVED DISPOSITIONS CUMULATIVE 

TOTAL TOTAL INVENTORY 

(including Reactivate) (including Made Inactive) 



-32 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



CHART 6 

Distribution of Cases in Inventory 

(as at December 31, 1999) 







Per Cent 
of Total 


INITIAL PREPARATION STAGE 

Cases at Initial Preparation Stage 


2847 


34% 


PRE-HEARING PROCESS STAGE 

TCO Pre-hearing work 
Scheduling (or rescheduling) 
Awaiting Hearing at WSIAT 


2842 
349 
735 


34% 
4% 
9% 


POST-HEARING STAGE 

TCO or OCC Follow-up 
WSIAT Decision-writing 
Decisions Released 


310 

778 

83 


4% 
9% 
1% 


CLOSING PROCESS STAGE 
Subtotal 


361 
5458 


4% 


POST-DECISION APPEALS 


173 


2% 


TOTAL 


8478 


100% 



-33 - 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 



CHART 7 

Scheduling, Hearings and Decisions 





1994 


1995 


1996 


1997 






No. Change from 


Na 


Change from 


No. Change from 






prior year 




Dnor vear 


prior year 


Scheduling Dates Arranged 


1697 


1591 -6% 


2032 


28% 


2403 18% 


Hearings Conducted 


1415 


1332 -6% 


1563 


17% 


2066 32% 


Cases Heard 


1299 


1223 -6% 


1449 


18% 


1942 34% 


Decisions Issued 


1031 


1403 36% 


1460 


4% 


1734 19% 


Case Dispositions by Decision* 


862 


1148 33% 
1998 


1302 


13% 
1999 


1524 17% 






No. Change from 


NfL 


Change from 


Change from 






prior year 




Dnor vear 


1994 


Scheduling Dates Arranged 




3051 27% 


3211 


5% 


89% 


Hearings Conducted 




2634 27% 


3009 


14% 


113% 


Cases Heard 




2481 28% 


2848 


15% 


119% 


Decisions Issued 




2392 38% 


2860 


20% 


177% 


Case Dispositions by Decision* 




1788 17% 


2260 


26% 


162% 


Note: 












* This includes decisions issued for all appeal types, including Reconsideration requests. 





-34- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 



CHART 8 

Decisions Issued in 1999 



Interim Decisions 406 



Reconsideration Decisions* 187 




Final Decisions ** 2267 



* Reconsideration Decisions include rulings at the threshold level as well as rulings at 
the merits level. 

** Cases receiving Final Decisions may not yet have been disposed at year end 1999. 



-35- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



CHART 9 

Relationship of WSIAT Caseload to WSIB Process 





1990 


1992 




1994 


1996 


1997 


1998 


1999 


No. of WSIB Claims 1 


473,407 


377,019 




370,444 


345,606 


341,178 


345,832 


367,400 


WSIB Decisions: * 
FEL7PD 
TT/Supp 


152,876 
97,684 


185,763 

96,414 




195,289 
76,800 


195,949 
65,149 


194,232 
60,047 


192,534 
56,259 


n/a 
n/a 


Objections to 
WSIB decisions *** 


DRB -13,854 
HB - 4,634 


DRB -21,580 
HB - 5,997 


DRB 
HB 


- 28,091 
-12,716 


11,219 


10,869 


11,501 


11,678 


WSIB Final Resolutions* 


2,963 


3,883 




5,628 


10,232 


11,957 


10,208 


10,913 


Appeals to WSIAT 


1,534 


1,806 




2,201 


3,605 


5,118 


11,094 


6,556 


WSIAT Files Completed 


1,593 


1,664 




1,792 


2,512 


3,073 


8,030 *** 


6,715 


WSIAT Inventory 


1,590 


1,535 




2,232 


3,521 


5,566 


8,637 


8,478 


NOTES: 

* Denotes the number of decisions made in respect of permanent and temporary impairment; in 1994 and following years the 

number of decisions includes FEL reviews. 
** DRB = Decision Review Branch, HB = Hearings Branch 
*** Includes 3,300 "bookmarked" cases. 
f Source: WSIB Monthly Monitor, January 2000 

Source: Appeals Branch Activities Q1 - Q4 1 999 report, distributed January 24, 2000 



-36- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 999 



CHART 10 

Statement of Expenditures and Variances 



Workplace Safety and Insurance Appeals Tribunal 
1999 Statement of Expenditures and Variances 

as at December 31, 1999 (In $000's) 








1999 
Budget 


1999 
Actual 


Variance 
$ % 


Salaries & Wages 

Employee Benefits 

Transportation & Communication 

Services 

Supplies & Equipment 


7,650.0 
1,377.0 

772.0 
5,595.0 

782.0 


7,720.0 
1,202.8 

857.9 
5,565.7 

375.6 


(70.2) 
174.2 
(85.9) 
29.3 
406.4 


.91 
12.65 
11.12 

.52 
51.96 


TOTAL OPERATING EXPENDITURES 


16,176.0 


15,722.2 


453.8 


2.80 


Capital Expenditures 


1,850.0 


68.6 


1,781.4 




TOTAL EXPENDITURES 


18,026.0 


15,790.8 


2,235.2 


12.39 


Less: Interest Revenue 


0.0 


27.8 


27.8 




TOTAL 


18,026.0 


15,763.0 


2,263.0 


12.55 



-37- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



Appendix A 



VICE-CHAIRS AND MEMBERS IN 1999 

This is a list of Vice-Chairs and Members whose Order-in-Council appointments 
were active at the end of the reporting period. 

Full-time 

Chair 

Strachan, Ian J. 

Vice-Chairs 

Ballam, Dianne Kroeker, Larry 

Bigras, Jean Guy McCombie, Nick 

Dechert, Ken Moore, John 

Gehrke, Linda Sutherland, Sara 
Keil, Martha 

Members representative of workers 

Crocker, James 
Jackson, Faith 
Tzaferis, Mary 

Members representative of employers 

Barbeau, Pauline 
Copeland, Susan 
Meslin, Martin 



-39- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 999 



Part-time 



Vice-Chairs 



Alexander, Judith 
Bayefsky, Eban 
Butler, Michael 
Carroll, Tom 
Cook, Brian 
Eagan, Michael 
Farago, Michael 
Fairer, Jennifer Bradley 
Faubert, Marsha 
Ferdinand, Urich 
Flanagan, William 
Frazee, Catherine 
Hartman, Ruth 
Henderson, Loretta 
Jordan, Leo 
Josefo, Jay 
Kenny, Maureen 
Koch, Karen 
Libman, Peter 
Loewen, Brian 



Makepeace, Nancy 
Marafioti, Victor 
Martel, Sophie 
McCutcheon, Rosemary 
McGrath, Joy 
Mclntosh-Janis, Faye 
Mole, Ellen 
Morrison, Gail 
Nairn, Rob 
Newman, Elaine 
Onen, Zeynep 
Renault, Audrey 
Robeson, Virginia 
Ryan, Sean 
Sajtos, Joanne 
Sandomirsky, Janice 
Signoroni, Antonio 
Silipo, Tony 
Zimmerman, Geoffrey 



Members representative of workers 



Anderson, James 
Beattie, David 
Besner, Diane 
Felice, Douglas 
Ferrari, Mary 



Klym, Peter 
Lebert, Ray 
Rao, Fortunato 
Robillard, Maurice 
Timms, David 



Members representative of employers 



Bullivant, Mardi 
Donaldson, Joseph 
Fay, Carole Ann 
Howes, Gerald 
Nipshagen, Gerry 



Robb, C. James 
Sanscartier, Robert 
Seguin, Jacques 
Young, Barbara 



Bob Apsey, a Member representative of employers at the Tribunal since its 
inception, passed away on May 16, 1999. 



-40- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 



VICE-CHAIRS AND MEMBERS - 
REAPPOINTMENTS IN 1999 



Robillard, Maurice 



reappointment effective January 1, 1999 



NEW APPOINTMENTS DURING 1999 



Full-time 

Member representative of workers 

Tzaferis, Mary April 29, 1999 

Part-time 



Vice-Chairs 

Bayefsky, Eban 
Butler, Michael 
Eagan, Michael 
Farago, Michael 
Ferdinand, Urich 
Hartman, Ruth 
Henderson, Loretta 
Jordan, Leo 
Josefo, Jay 
Koch, Karen 
Loewen, Brian 
Makepeace, Nancy 
Martel, Sophie 
McCutcheon, Rosemarie 
Morrison, Gail 
Nairn, Rob 
Ryan, Sean 
Silipo, Tony 
Zimmerman, Geoffrey 



April 29, 1999 
May 6, 1999 
April 29, 1999 
October 6, 1999 
April 29, 1999 
October 6, 1999 
March 1, 1999 
October 8, 1999 
January 13, 1999 
October 6, 1999 
May 6, 1999 
April 29, 1999 
October 6, 1999 
October 6, 1999 
October 6, 1999 
April 29, 1999 
October 6, 1999 
December 2, 1999 
April 29, 1999 



-41 - 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 999 



Part-time 

Member representative of employers 

Bullivant, Mardi April 29, 1999 

SENIOR STAFF 



Bestvater, David 
Geisberger, Janet 
Glass, Bob 
Keil, Martha 

Onen, Zeynep 
Oulton, Janet 
Prest, Carole 
Smith, Eleanor 
Taylor, Peter 



Director, Case Management Systems 
Director, Human Resources & Labour Relations 
Director, Finance and Administration * 
Vice-Chair Registrar, 

Office of the Vice-Chair Registrar 
Executive Director ** 
Appeals Administrator 
Counsel to the Tribunal Chair 
Tribunal General Counsel 
Manager, Financial Administration 



MEDICAL COUNSELLORS 



The following is a list of the Tribunal's Medical Counsellors. 



Dr. John D. Atcheson 
Dr. John Duff 
Dr. Ross Fleming 
Dr. Wilfred Goodman 
Dr. Gordon A. Hunter 
Dr. John S. Speakman 



Psychiatry 
General Surgery 
Neurosurgery 
Otolaryngology 
Orthopaedic Surgery 
Ophthalmology 



Dr. Anthony L. Weinberg Internal Medicine 



Restructuring of Tribunal management and administration continued in 1999. Bob Glass was hired in 
December 1999 to oversee and coordinate all administrative services, including Finance, Human 
Resources, Publications, the Library, Reception, Records, Translation, Mail and Reproduction. 
Information Systems became part of the Case Management Group. 

Zeynep Onen began her duties as the Tribunal's Executive Director on July 1, 1999, when Doug Jago 
retired as Tribunal Director and General Manager. 



-42 - 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



Appendix B 



WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
December 31, 1999 

Auditors' Report 

To the Chair of the Workplace Safety and Insurance Appeals Tribunal 

We have audited the balance sheet of the Workplace Safety and Insurance 
Appeals Tribunal as at December 31, 1999 and the statement of operations and of 
cash flows for the year then ended. These financial statements are the responsibility 
of the Tribunal's management. Our responsibility is to express an opinion on these 
financial statements based on our audit. 

We conducted our audit in accordance with Canadian generally accepted auditing 
standards. Those standards require that we plan and perform an audit to obtain 
reasonable assurance whether the financial statements are free of material 
misstatement. An audit includes examining, on a test basis, evidence supporting the 
amounts and disclosures in the financial statements. An audit also includes assessing 
the accounting principles used and significant estimates made by management, as 
well as evaluating the overall financial statement presentation. 

In our opinion, these financial statements present fairly, in all material respects, 
the financial position of the Workplace Safety and Insurance Appeals Tribunal as at 
December 31, 1999 and the results of it operations and its cash flows for the year 
then ended in accordance with Canadian generally accepted accounting principles. 

Deloitte & Touche, LLP 
Chartered Accountants 
Toronto, Ontario 
April 14, 2000 



-43- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



BALANCE SHEET 
December 31, 1999 



1999 1998 



ASSETS 



Receivable from Workplace Safety and 






Insurance Board 


$ 3,723,765 


$ 3,524,487 


Recoverable expenses (Note 3) 


320,617 


37,893 


Advances 


10,837 


9,011 




$ 4,055,219 


$ 3,571,391 


LIABILITIES 






Bank overdraft 


$ 354,438 


334,360 


Accounts payable and accrued liabilities 


2,300,781 


1,837,031 


Operating advance from Workplace 






Safety and Insurance Board (Note 4) 


1,400,000 


1,400,000 




$ 4,055,219 


$ 3,571,391 



Approved on behalf of the Workplace Safety and Insurance Appeals Tribunal 
I.J. Strachan, Chairman 



-44- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 999 



STATEMENT OF OPERATIONS 
Year ended December 31, 1999 

1999 1998 

OPERATING EXPENSES 

Salaries and wages $7,720,251 $7,183,073 

Employee benefits 1,202,807 1,110,984 

Transportation and communication 857,864 704,746 

Services 5,565,707 4,495,844 

Supplies and equipment 375,598 315,455 



TOTAL OPERATING EXPENSES 15,722,227 13,810,102 

CAPITAL EXPENSES 68,611 223,666 



TOTAL EXPENSES 15,790,838 14,033,768 



Less: Bank interest income {27,841] (37,950) 

NET RECOVERABLE EXPENDITURES 15,762,997 13,995,818 

FUNDING REVENUE 15,762,997 13,995,818 



NET RESULT FOR THE YEAR $ - $ 



-45- 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1999 



STATEMENT OF CASH FLOWS 
Year ended December 31, 1999 



NET INFLOW (OUTFLOW) OF CASH 
RELATED TO 



1999 



1998 



OPERATING ACTIVITIES 

Funding revenue received from 

Workplace Safety and Insurance Board 
Cash receipts from Ontario Human 

Rights Commission 
Bank interest income received 
Expenses and net advances 

NET CASH FLOW FROM OPERATING 
ACTIVITIES DURING THE YEAR 



$15,563,719 


$12,639,831 


37,893 


— 


27,841 


37,950 


(15,649,531) 


(14,437,141) 


(20,078) 


(1,759,360) 



CASH AND CASH EQUIVALENTS, 
BEGINNING OF YEAR 



(334,360) 



1,425,000 



CASH AND CASH EQUIVALENTS, 
END OF YEAR 



$ (354,438) 



$ (334,360) 



-46- 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1999 



NOTES TO THE FINANCIAL STATEMENTS 
December 31, 1999 

1. GENERAL 

The Workplace Safety and Insurance Appeals Tribunal (the "Tribunal") was 
originally created by the Workers' Compensation Amendment Act, S.O. 1984, 
Chapter 58 - Section 32, which came into force on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, 
impartial and independent manner, appeals by workers and employers in 
connection with decisions, orders or rulings of the Workplace Safety and 
Insurance Board (formerly Workers' Compensation Board), and any matters or 
issues expressly conferred upon the Tribunal by the Act. 

2. SIGNIFICANT ACCOUNTING POLICIES 

The Tribunal's financial statements are prepared in accordance with generally 
accepted accounting principles. 

Revenue and expenses 

Revenue and expenses are recognized on an accrual basis. 

3. RECOVERABLE EXPENSES 

Recoverable expenses consist of amounts recoverable from Pay Equity Hearing 
Tribunal, Ontario Labour Relations Board and Board of Inquiry for shared 
services such as reception, library, mailing, courier and photocopy expenses 
(1998: for secondment of an employee to the Ontario Human Rights 
Commission). 

4. OPERATING ADVANCE FROM WORKPLACE SAFETY AND INSURANCE BOARD 
The operating advance is interest-free with no specific terms of repayment. 

5. UNCERTAINTY DUE TO THE YEAR 2000 ISSUE 

The Year 2000 Issue arises because many computerized systems use two digits 
rather than four to identify a year. Date-sensitive systems may recognize the year 
2000 as 1900 or some other date, resulting in errors when information using year 
2000 dates is processed. In addition, similar problems may arise in some 
systems which use certain dates in 1999 to represent something other than a 
date. Although the change in date has occurred, it is not possible to conclude 
that all aspects of the Year 2000 Issue that may affect the entity, including those 
related to customers, suppliers, or other third parties, have been fully resolved. 



-47